The court found for summary judgment for the defendant (federal

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The court found for summary judgment for the defendant (federal case) based on undisclosed documents which the defendant submitted in its reply to my (pro se plaintiff) objection to their motion for summary judgment. I then filed a motion to set aside since the court's decision was based on those undisclosed documents. (rules 60 and 26 and 37)The defendant has responded to my motion to set aside by essentially retrying the case, and how I couldn't have won regardless. They admit in their pleading that all the docs they supplied with their reply to my objection were discoverable; but that it was my fault that I didn't specifically ask for them. They also state that it is common practice for counsel to add new documents previously undisclosed, to motions for summary judgment. Additionally, their Motion for Summary Judgment referenced exhibits which were not actually attached or filed with the Motion. These would have been undisclosed documents. The defendant, in their response to my motion to set aside, further claims that it was my job to tell them they forgot to attach the exhibits so that I could get them, thereby disclosing them ( 4 months after close of discovery). Are any of their positions correct? Also, if the court doesn't set aside their order, I will be filing an appeal, based on the error of the court ruling on undisclosed documents. Do any of the defendant's positions listed above have merit? I don't want to rehash these errors if they will be irrelevant to the appellate court. Thanks so much.

The biggest problem that I see with their argument is that in FEDERAL CIVIL LAWSUITS there is a procedure called "initial disclosures". At this time, all parties to the action provide any documents they currently have that are discoverable to the other parties. Thus, if they had discoverable documents and didn't produce them in their initial disclosures, that sounds like an issue.

If they claim that they didn't have these documents at the time and that you didn't ask for them in discovery, then they could have an argument in that limited set of facts. Also, if documents were used as part of a motion that hadn't been previously produced, whether this was proper would depend on whether or not you asked for the documents in discovery and/or whether the documents should have been produced as an initial disclosure.

The best argument may be that the motion contained no exhibits, and that you were deprived of your right to review and analyze these documents before the hearing, which gave you a distinct disadvantage.

Thus, there may be some merit to their claims as outlined above, but if they argued their case and used previously undisclosed exhibits to support the motion and you never received them, that's an issue.

OK , I see. These docs were specifically asked for in discovery; the defendant claims he didn't understand the request. (the request was, Provide all documents for [the corporate defendant] and/or the [president of the corporation defendant] pertaining to [the corporation's] and/or [the president's] onboarding of new clients. They only provided docs for the [president] and not anything on the [corporation] before that [presendent] became president. In their response, they acknowledge that during my deposition, I made it clear that the onboarding procedures were an issue, which is why they decided to include these new docs in their motion for summary judgment.It sure seems to me that they knew way before their MSJ that these docs were discoverable, were germaine, and should have been disclosed.What is your opinion, if any, on whether the court will set aside the judgment? Or whether I have an appealable issue? Thanks again.

If the party didn't understand the request, then that should have been the response - that the request is not understood and if you will clarify the question, a response will be provided.

As for setting the judgment aside, it is VERY hard to do, but it is possible (I had one set aside for a client this morning, actually because of improper notice).

However, if you can prove that the documents weren't attached to the motion and that they weren't produced during discovery, you should have a decent claim. However, if the motion fails, you can still appeal.